An article in today’s Los Angeles & San Francisco Daily Journal describes an interesting punitive damages strategy by the plaintiffs’ counsel in a lawsuit alleging that a woman (Marie Edwards) was killed when her Lexus suddenly accelerated.  The article, “Toyota Fends off Punitive Damages Claims” (subscription required), describes correspondence in which plaintiffs’ counsel argues that he will be able to obtain punitive damages based on the pain and suffering experienced by the decedent in the moments before her death. 

I’m not sure that strategy is going to work.  Under California law, plaintiffs in a wrongful death action are not entitled to recover punitive damages.  (See, e.g., Nelson v. County of Los Angeles (2003) 113 Cal.App.4th 783, 794 [“‘[I]t has long been established in California that punitive damages may not be recovered in a wrongful death action’”].)  The estate of the decedent can recover punitive damages in a survivorship action, but the estate cannot recover damages for the decedent’s pain and suffering, because those damages are, by statute, extinguished if the decedent dies before entry of a verdict. 

Perhaps the plaintiffs here intend to argue that Ms. Edwards’ momentary distress or pain and suffering represents “actual harm,” which even though it is legally noncompensable, could nonetheless be considered as the basis for imposing punitive damages in the survivor action.  There would seem to be a good argument on the defense side, however, that it would be improper to base punitive damages on an element of compensatory damages that has been expressly rejected by the Legislature.  Such an approach would effectively be an end-run around the Legislature’s policy decision.  Moreover, using a disapproved measure of compensatory damages as the hook for punitives would introduce an element of unpredictability and arbitrariness, something the U.S. Supreme Court has consistently railed against.